How New York has treated them
New York has historically left non-competes to the courts rather than to a broad statute, and courts decide case by case whether a restriction is reasonable. They tend to look at whether the employer has a legitimate interest to protect, such as trade secrets or client relationships developed at the company's expense, and whether the restriction goes further than needed in time, geography, or scope. Restrictions on people with unique skills, and on sellers of a business, are often viewed differently from those on ordinary workers. Bills to limit non-competes have been debated in Albany, and a federal rule that would have banned most of them did not take effect, so the current state of the law should be checked. Some other states, California among them, are far more restrictive.
Before signing, and before leaving
If you are asked to sign one, read it for its length, the territory it covers, and whether it bars working for competitors or only soliciting clients and coworkers. Ask what happens if you are let go without cause, because some New York courts have been reluctant to enforce restrictions in that situation. If you are leaving, find your signed copy and any later agreements, such as equity grants, which often carry their own restrictions. Do not take client lists or company files with you. Your new employer may want to see the agreement, and how you answer its questions matters.
When a dispute starts
Many disputes begin with a cease-and-desist letter to the employee, the new employer, or both, and some move quickly to a request for an emergency court order. We review the agreement's language, the choice-of-law and forum clauses, and the facts about what you actually did at the old job. Sometimes the most practical response is a narrower role at the new employer, or a negotiated release. For employers, we look at whether the restriction is drafted to survive review, and whether a non-solicitation or confidentiality clause would protect the real interest more reliably.
